P. Simmons, Brooklyn, NY (Barbara H. Dildine and Janet
Neustaetter of counsel), for appellants.
& Eskin, P.C., Bronx, NY (Monica Eskin and Bruce M.
Zalaman of counsel), for respondent.
Massay, Brooklyn, NY, petitioner pro se.
REINALDO E. RIVERA, J.P., LEONARD B. AUSTIN, JEFFREY A.
COHEN, VALERIE BRATHWAITE NELSON, JJ.
DECISION & ORDER
by the children from an order of the Family Court, Kings
County (Adam Silvera, J.), dated July 21, 2015. The order,
after a hearing, inter alia, in effect, denied the
mother's petition for sole custody of the children.
that the order is reversed, on the facts and in the exercise
of discretion, without costs or disbursements, and the matter
is remitted to the Family Court, Kings County, for a new
hearing on the mother's petition for sole custody of the
children, to be held with all convenient speed and in
accordance herewith, and for a new determination of the
petition thereafter; and it is further, ORDERED that pending
the new hearing and determination of the petition, the
provisions of the order dated July 21, 2015, regarding
custody and visitation shall remain in effect.
parties are married and are the parents of two children.
After the birth of the first child, the family moved from
Brooklyn to Baldwin in July 2008, after buying a home. In
2012, the parties separated, and the mother moved back to
Brooklyn. Although the mother took the children with her when
she moved out, due to her work schedule, the parties
informally agreed that the father would have parenting time
with the children from Tuesday after school until Friday
mornings, and occasionally for a full weekend. The father
worked in Brooklyn and the children attended a private school
in Brooklyn. In April 2014, the mother filed a petition for
sole legal and physical custody of the children. Following
the hearing, the court awarded decision-making authority over
the children's education to the father, and over the
children's health and religious upbringing to the mother.
The court also awarded primary physical custody to the
father, but based upon the recommended visitation schedule
proposed by one of the children, awarded the mother parenting
time with the children during the school year from Sunday
afternoon until Wednesday morning, and awarded the father
parenting time with the children from Wednesday afternoon
until Sunday morning. The children appeal, arguing that the
court should have awarded the parties joint legal custody,
and the mother sole physical custody.
The court's paramount concern in any custody dispute is
to determine, under the totality of the circumstances, what
is in the best interests of the child'" (Matter
of Gooler v Gooler, 107 A.D.3d 712, 712, quoting
Matter of Julie v Wills, 73 A.D.3d 777, 777; see
Eschbach v Eschbach, 56 N.Y.2d 167, 171). In determining
an initial petition for child custody, the totality of the
circumstances includes, but is not limited to, "(1)
which alternative will best promote stability; (2) the
available home environments; (3) the past performance of each
parent; (4) each parent's relative fitness, including his
or her ability to guide the child, provide for the
child's overall well being, and foster the child's
relationship with the noncustodial parent; and (5) the
child's desires" (Matter of Supangkat v
Torres, 101 A.D.3d 889, 890; see Matter of Tinger v
Tinger, 108 A.D.3d 569, 570; Matter of Swinson v
Brewington, 84 A.D.3d 1251, 1253). "Primary among
[the] circumstances to be considered is the quality of the
home environment and the parental guidance the custodial
parent provides for the child" (Eschbach v
Eschbach, 56 N.Y.2d at 172). Nevertheless, the court
must consider the totality of the circumstances and "the
existence or absence of any one factor is not
determinative" (Matter of Bowe v Bowe, 124
A.D.3d 645, 646).
while this Court accords great deference on appeal to the
factfinder's opportunity to view the witnesses, hear the
testimony, and observe demeanor (see Matter of Connolly v
Walsh, 126 A.D.3d 691, 693; Matter of Noonan v
Noonan, 109 A.D.3d 827, 828), its authority in custody
matters is as broad as that of the hearing court (see
Mohen v Mohen, 53 A.D.3d 471, 473; Young v
Young, 212 A.D.2d 114, 117). "Although the
credibility determination of the hearing court, which saw and
heard the witnesses, is entitled to great deference, its
custody determination will not be upheld where it lacks a
sound and substantial basis in the record" (Matter
of Moore v Gonzalez, 134 A.D.3d 718, 720).
the Family Court's order lacked a sound and substantial
basis. The award to the father of decision-making authority
over the children's education was inconsistent with the
parenting schedule established by the court. During the
hearing, the father testified that if he was awarded custody,
the children would attend public school in Baldwin, rather
than their private school in Brooklyn. However, pursuant to
the parenting schedule established by the court, the children
would be spending Monday through Wednesday morning in
Brooklyn with the mother, despite the fact that they would be
attending school in Baldwin. This arrangement does not
promote stability for the children, lacks a sound and
substantial basis in the record, and does not serve the best
interests of the children. Accordingly, we remit the matter
to the Family Court, Kings County, for a new hearing and
determination of the mother's petition for sole custody
of the children, to be held with all convenient speed
(see Matter of Sims v Boykin, 130 A.D.3d 835, 837;
Matter of Nalty v Kong, 59 A.D.3d 723, 724;
Matter of Roldan v Nieves, 51 A.D.3d 803, 806).
light of our determination, we need not reach the ...